Forfeiture _ Confiscation Presen

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					 IAP European Regional Conference, The Hague, March 2009




Asset Forfeiture in Bermuda



                     Presented by:

             Cindy E. Clarke
                   And
            Larissa R. Burgess
   Definition of Confiscation
• a legal seizure without compensation by
  government or other public authority as
  a penalty

• Application under
  – Proceeds of Crime Act 1997
     Definition of Forfeiture
loss of property due to a violation of law

• Legal Application under
  – Misuse of Drugs Act 1972
  – Proceeds of Crime Act 1997
     What Circumstances Permit
  Section 9 POCA 1997 Confiscation
Drug Trafficking – 9 (1)
  Where a defendant appears before the Supreme Court to be sentenced
  for one or more drug trafficking offences, the court shall proceed under
  this section
        (a) on the application of the DPP, or
        (b) of its own motion where it considers it appropriate to do
             so.
   (2) The court shall first determine whether the defendant has
        benefited from drug trafficking.
   (3) For the purposes of this Act, a person has benefited from drug
        trafficking if he has at any time (whether before or after the
        commencement of this Act) received any payment or other
        reward in connection with drug trafficking carried on by him or
        another person.
   What Circumstances Permit
Section 9 POCA 1997 Confiscation
(4) If the court determines that he has so benefited, it shall, before
   sentencing or otherwise dealing with him in respect of the offence or (as
   the case may be) any of the offences concerned, make a confiscation
   order and determine in accordance with section 15 the amount to be
   recovered in his case under the order.
(5)The court shall then, in respect of the offence or offences concerned—
   (a) order the defendant to pay the amount of the confiscation order
   within such period as it may specify; and
   (b) take into account the confiscation order before
                (i) imposing any fine on him;
                (ii) making any other order involving any payment by
                     him; and
                (iii) making any order under section 37 of the Misuse of
           Drugs Act 1972 [title 11 item 4] (forfeiture); but
   (c) subject to paragraph (b), leave the confiscation order out of account
   in determining the appropriate sentence or other manner of dealing
   with the defendant.
    What Circumstances Permit
 Section 10 POCA 1997 Confiscation
Relevant Offences - 10(1)
  Where a defendant appears before the Supreme Court to be sentenced
  for one or more relevant offences, the court shall proceed under this
  section
        (a) on the application of the DPP
        (b) of its own motion where it considers it appropriate to do
             so.
  (2)The court shall first determine whether the defendant has benefited
  from
        (a) the offence or offences for which he is to be sentenced
             ("the principal offence"),
        (b) any other relevant offence of which he was convicted in the
             same proceedings as the principal offence, and
        (c) any relevant offences which the court will be taking into
            consideration in determining his sentence for the principal
            offence.
     What Circumstances Permit
  Section 10 POCA 1997 Confiscation
(3)For the purposes of this Act
   (a) a person benefits from an offence if he obtains property as
   a result of or in connection with its commission and his benefit
   is the value of any property so obtained; and
   (b) if he derives a pecuniary advantage as a result of or in
   connection with the commission of an offence, he is to be
   treated as if he had obtained instead a sum of money equal to
   the value of the pecuniary advantage.
(4)If the court determines that the defendant has benefited from
   the offences mentioned in subsection (2), it shall, before
   sentencing or otherwise dealing with him in respect of the
   principal offence, make a confiscation order and determine in
   accordance with section 15 the amount to be recovered in his
   case under the order.
     What Circumstances Permit
  Section 10 POCA 1997 Confiscation
(5) The court shall then in respect of the principal offence—
    (a) order the defendant to pay the amount of the confiscation order
         within such period as it may specify; and

   (b)   take into account the confiscation order before
         (i) imposing any fine on him, or
         (ii) making any other order involving any payment by him; but

   (c)   subject to paragraph (b), leave the confiscation order out of
         account in determining the appropriate sentence or other manner
         of dealing with the defendant.
   What Circumstances Permit
 Section 37 MDA 1972 Forfeiture
1)A court may (whether or not any person has
  been convicted of such offence) order to be
  forfeited to the Crown
    (a)      any money or thing (other than premises,
    a ship exceeding two hundred and fifty gross tons
    or an aircraft) which has been used in the
    commission of or in connection with an offence
    under this Act; and
    (b)      any money or other property received or
    possessed by any person as the result or product of
    an offence under this Act.
      Purpose of Confiscation

•   Deprive persons of the financial
    benefit received as a result of drug
    trafficking

•   Deprive persons of the financial
    benefit obtained as a result of serious
    offences.
      Purpose of Forfeiture
• Deprive persons of property they
  allowed to be used in the trafficking of
  drugs – known as instrumentalities;
• Deprive persons of property obtained as
  a result of the commission of drug
  trafficking offences.
 Standard of Proof – Civil Standard
        (MDA Forfeiture)
• Balance of Probabilities
  – ―the burden of proof is on the Crown and
    …the test is the balance of probabilities…It
    is not necessary for me to find a direct
    connection.‖
                                     -Dennis Mitchell
                                        Puisne Judge
 Standard of Proof – Civil Standard
       (POCA Confiscation)
• Statutorily Provided
• Practice Direction has deemed the
  procedure “quasi – criminal”.
   Examples of items forfeited
• Section 37(1)(a) MDA
  – a vehicle in which drugs are being
    transported. (must avoid affecting any
    third party being affected.)
   Examples of items forfeited
• Section 37(1)(b) MDA
  – Where money is seized with drugs and the
    money test positive for traces of drugs on it
    and a person convicted of possession with
    intent to supply.
 Protection of Third Party Rights
• Section 16 POCA
   – (1)         Where an application is made for a confiscation order, a
     person who asserts an interest in realisable property may apply to
     the court, before the confiscation order is made, for an order
     under subsection (2).
   – (2)         If a person applies to the court for an order under this
     subsection in respect of his interest in realisable property and the
     court is satisfied—
       • (a)    that he was not in any way involved in the defendant's criminal
         conduct; and
       • (b)    that he acquired the interest—
            – (i) for sufficient consideration; and
            – (ii)             without knowing, and in circumstances such as not to arouse
              a reasonable suspicion, that the property was, at the time he acquired it,
              property that was involved in or was the proceeds of criminal conduct,
   the court shall make an order declaring the nature, extent and value
      (as at the time the order is made) of his interest.
Protection of Third Party Rights


Third parties contemplated here are
innocent as in the Civil concept of ―Bona
fide purchaser for value‖ without notice.
Best Practice to notify all third parties of
proceedings prior to confiscation.
 Protection of Third Party Rights
• Section 16 only provides guidance and
  not detailed provisions;
• Imposes duty on the Courts;
• But is primarily in Applicant’s (Crown)
  interest to ensure correctness of every
  step up to the grant of the Order.
Mode of Confiscation Application
• Application forms part of Sentence procedure
  after conviction it must be made in writing
  and filed as part of submissions i.e.
   – Notice of Application;
     • Supported by Affidavit with summary of
       relevant evidence if convicted after trial; or
     • Supported by Summary of Evidence tendered
       to Court where there was a plea of guilty;
        What Happens Upon
         Making of Order?

• Court decision should be written;
• Formal Order.
• The Defendant is given a period of time
  to satisfy the order; and a default period
  of imprisonment is ordered consecutive
  to any period of imprisonment being
  served.
   Confiscation v. Forfeiture
• Confiscation
  – Pros:
    • Works whether or not property belongs to
      person convicted but we can establish
      connection with offence having regard to third
      party
    • The Assumptions
    • Can confiscate the value of assets for 6 years
      prior to the date of the offence.
    Confiscation v. Forfeiture
• Confiscation
  – Cons:
    •   Lengthy hearings
    •   Enforcement Difficulties
    •   Supreme Court Only
    •   timelines
   Forfeiture v. Confiscation
• Forfeiture
  – Pros:
     • Occur in any Court jurisdiction Simpler mode of
       application
     • No time limit under section 37;
     • Works well for less complicated and lower
       value property making this cost effective
 Forfeiture v. Confiscation
– Works well for trafficking offences of low
  quantities of drugs
   • i.e. useful for 32 grams of marijuana as not
     usually triable in Supreme Court and no
     indication of long-term dealing
– Can be used where there is no conviction
– Works whether or not property belongs to
  person convicted but we can establish
  connection with offence having regard to
  third party
   Forfeiture v. Confiscation
• Forfeiture
  – Cons:
     • Drug Trafficking Only
     • Only Assets in Bermuda
cclarke@gov.bm
lrburgess@gov.bm
Dept of Public
Prosecutions
Bermuda

				
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posted:4/24/2010
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